The opinion of the court was delivered by: William J. Martini Judge
MARTIN LUTHER KING JR . FEDERAL BLDG . & U . S. COURT HOUSE 50 WALNUT STREET, P. O . BOX 419 NEWARK, NJ 07101-0419 (973) 645-6340
This matter comes before the Court on Defendant United States' Motion to Dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. There was no oral argument. Fed. R. Civ. P. 78. For the reasons stated below, Defendant's motion is DENIED.
This action arises from a minor automobile accident involving a United States Post Office ("USPS") vehicle. As it implicates the Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seq. ("FTCA"), this action is now pending in federal court. On February 8, 2006, a USPS truck driven by a USPS employee, Jose Nunez, was involved in a collision with a car driven by Defendant Mark Grieco ("Vehicle A"). The collision resulted in damage to a parked car insured by Plaintiff New Jersey Manufacturers Insurance Co. ("Vehicle B").*fn1
Plaintiff filed an administrative claim with the USPS on April 10, 2006 arguing that Mr. Nunez and Mr. Grieco negligently operated their vehicles and damaged Vehicle B. The USPS denied Plaintiff's administrative claim on June 6, 2006. The denial letter explained that if Plaintiff wanted to challenge the denial, he may "file suit in a United States District Court no later than six (6) months after the date the Postal Service mails the notice of that final action . . . [and] the United States of America is the only proper defendant in a civil action brought pursuant to the Federal Tort Claims Act and such suit may be heard only by a federal district court." (Kriegsman Certification Ex. B.)
On October 10, 2006, Plaintiff filed a negligence suit in New Jersey state court against the USPS, Mr. Nunez, Mr. Greico, and the owner of Vehicle A, Carmen Grieco. Defendants Nunez and the USPS appeared on the original trial date, February 8, 2007. The United States Attorney's office then preceded to request trial adjournments. On April 23, 2007, Mr. Nunez and the USPS, represented by the United States Attorney's office, made a motion to dismiss on lack of jurisdiction grounds. Judge Eugene Codey of the Superior Court of New Jersey denied the motion and ordered the case removed to federal district court on May 11, 2007.
On June 6, 2007, the United States Attorney's office submitted a certification stating that Mr. Nunez was acting within the scope of his employment, and thus, pursuant to 28 U.S.C. § 2679(d) substituted Defendant United States of America for state court defendant Nunez. Simultaneously, the United States Attorney's office removed the action to this Court on behalf of Defendant United States of America pursuant to 28 U.S.C. § 2679(d) and 28 U.S.C. § 1441.
Defendant's motion to dismiss for lack of subject matter jurisdiction was filed on June 28, 2007 and is now before the Court.
A motion to dismiss for lack of subject matter jurisdiction may be made under either Fed. R. Civ. P. 12(b)(1) or 12(b)(6). The standard of review on a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction varies depending on whether the defendant makes a facial or factual challenge. Gould Elecs., Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000). The standard for reviewing a facial attack is similar to the standard governing a Rule 12(b)(6) motion. "In reviewing a facial attack, the court must only consider the allegations of the complaint and documents referenced therein and attached thereto, in the light most favorable to the plaintiff." Id. at 176. In contrast, in reviewing a factual challenge, the allegations of the complaint are not accepted as true, and "the court may consider evidence outside the pleadings." Id. This case concerns a facial challenge.
In a 12(b)(6) motion, a statute of limitations defense may be raised as an affirmative defense if the basis for establishing the defense is apparent from the face of the complaint. See Bethel v. Jendoco Constr. Corp., 570 F.2d 1168, 1174 n.10 (3d Cir. 1978). If, after viewing the allegations in the complaint in the light most favorable to the plaintiff, it appears that no relief could be granted "under any set of facts that could be proved consistent with the ...